Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1024
•30 September 2004
CATCHWORDS – IMMIGRATION – visa cancellation – substantial criminal record – failure to pass character test – whether discretion should be exercised – failure to lodge written statement of information presented at hearing – whether oral evidence can be taken into account – decision affirmed.
Migration Act 1958 ss. 31, 499, 500, 501 and 501G
Migration Regulations 1994 Schedules 2 and 4
Administrative Appeals Tribunal Act 1975 ss. 25, 29, 33, 37, 42A, 42B, 42C and 43
Sales Tax Assessment Act 1992 s. 108
One.Tel Limited and Others v Deputy Commissioner of Taxation (2000) 171 ALR 227
Re Stuart and Oliphant and Seadon’s Contract [1896] 2 Ch 328
Insurance and Superannuation Commissioner v Robertson (1995) 30 ATR 239
Fieldhouse v DCT (1989) 25 FCR 187
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 33 AAR 446
Project Blue Sky and Others v Australian Broadcasting Commission (1998) 194 CLR 355
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2004] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/841
GENERAL ADMINISTRATIVE DIVISION )
Re GRAEME CARMICHAEL
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 30 September 2004
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 13 July 2004.
S A FORGIE
Deputy President
REASONS FOR DECISION
The applicant, Mr Graeme John Carmichael, migrated to Australia from Scotland in May 1987. He was then 6 years old and is not an Australian citizen. Mr Carmichael has been convicted of a number of offences which include, in very general terms, drug related offences, burglary and theft. They were committed in a seven year period beginning in 1997. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) decided on 13 July 2004 that Mr Carmichael does not pass the Character test set out in s. 501(6) of the Migration Act 1958 (“Act”). The delegate has also decided that Mr Carmichael’s visa permitting him to remain in Australia should be cancelled pursuant to s. 501(2). Mr Carmichael seeks review of that decision. I have decided that it should be affirmed.
The hearing was held at the Fulham Correctional Centre (“Fulham”) to avoid the need for Mr Carmichael to be transferred to another prison and so lose his place at Fulham. At that hearing, Mr Carmichael was represented by Mr Strauch of counsel and the Minister by his solicitor, Mr Chand. After the scheduled start of the hearing, Mr Strauch sought an adjournment of the hearing on the basis that his car had broken down at Pakenham and, later in the morning, on the basis that he had not yet received his brief as it had been sent by facsimile to his chambers that morning. I granted a short adjournment and the hearing proceeded later in the day. Regard was had to the documents lodged pursuant to s. 501G of the Act (“G documents”). Oral evidence was given by Mr Carmichael in support of his own case together with his parents, Mr John Carmichael and Mrs Maureen Carmichael, and his brother, Mr Douglas Carmichael.
ISSUES
As there is no question that Mr Carmichael does not pass the Character test, there is only one primary issue. That is whether the discretion in s. 501(2) should be exercised so that his visa is not cancelled.
Before I can decide that issue, I must consider whether s. 500(6H) of the Act prevents me from having regard to some or all of the oral evidence that was given in support of Mr Carmichael’s case. To decide that issue, I must decide whether the information they presented was set out in a written statement given to the Minister at least two clear business days before the hearing was held in relation to the decision. If it was not set out, I must decide whether s. 500(6H) requires strict compliance or not. I have decided that it does require strict compliance and that there are certain aspects of Mr Carmichael’s evidence that cannot be taken into account.
Although he opposed their evidence being heard at the hearing and both parties were given leave to make written submissions on the subject, Mr Chand has now accepted that the oral evidence of Mr and Mrs Carmichael and of Mr Douglas Carmichael is admissible. I have reached that conclusion also with the exception of the evidence of Mr Carmichael’s father arranging employment. I have decided that not all of the evidence given by Mr Carmichael can be taken into account. Although I do not consider that a concession made by a party can alter my obligation to decide the matter according to the Act, I note that the concession did not extend to Mr Carmichael’s evidence in any event. I have decided that I may not have regard to two passages of his evidence because of the provisions of s. 500(6H). Even so, I have decided the case on the basis of all of the evidence, whether or not it is excluded. I have done that as I have decided that Mr Carmichael is not successful even when I consider all of the evidence. It follows that he would not have been successful had I confined myself to the evidence permitted by s. 500(6H) of the Act. I note that I have not been given copies of reports or certificates that he has been given while in prison. As they were not lodged in accordance with s. 500(6J), I could not have had regard to them. Whether they would have made any difference to the outcome of the case, I cannot judge for I do not know whether there are any and, if so, what they contain.
BACKGROUND
There were a number of factual matters that were not in dispute between the parties. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.
Early life
Mr Carmichael was born in Scotland on 22 March 1981. He has a younger brother, Douglas, who was born on 7 June 1983. Together with their parents, they migrated to Australia on 8 May 1987. They moved for a better life, particularly for the children. Unemployment in Scotland was at an all time high while the building industry was booming in Australia. Mr Carmichael’s father is a builder. His father obtained employment within a week of his arrival and his mother gained employment as soon as her younger son started school. She has remained in that employment for 17 years and his father has never been unemployed.
Remaining in Scotland are his maternal and paternal grandmothers, who are both in their late 80s. He visited them for a week or two in 1992 when he and his family returned to Scotland for a short visit. Mr Carmichael was then 11 years of age and has little memory of them.
Mr Carmichael attended primary school in Melbourne and the first three years of secondary school. He enjoyed school but left at the end of Year 10 to take up an apprenticeship as a boilermaker. Mr Carmichael enjoyed his work greatly until, two years into the apprenticeship, he had a bad accident at work and lost the tip of one of his fingers in a machine. He then began an apprenticeship as a painter. As a teenager, Mr Carmichael played for the Silverton Football Club and was also a member of the Waverley Gardens Nautilus Gym.
Mr Carmichael has used heroin since at least 1999 stopping only on his most recent arrest on 10 March 2004 and subsequent imprisonment. It may be that he started earlier when he was 16 or so but the evidence is not clear.
Convictions
The offences of which Mr Carmichael has been convicted are:
| Court | Date | Charge | Count | Result |
| Ringwood Magistrates | 7/4/04 | Burglary | 3 | Aggregate 2 YEARS imprisonment. Concurrent. Effective total State term imposed is 2 years. Time held in custody, 29 days, reckoned as a period of imprisonment already served under this sentence. Cumulative upon State sentences presently being served and imposed prior to this day. Cumulative upon any uncompleted term owed to the State Parole Board. Non-parole period fixed at 9 months. as CARMICHAEL, GRAEME |
| Castlemaine Magistrates | 17/9/03 | Burglary Theft | Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months Pay compensation $2344.00 as CARMICHAEL, GRAEME | |
| Castlemaine Magistrates | 30/4/03 | Burglary Theft | Aggregate 2 MONTHS imprisonment. Concurrent. Effective total State term imposed is 2 months Cumulative upon State sentences presently being served and imposed prior to this day. ON EACH CHARGE: Aggregate 2 MONTHS imprisonment. Concurrent. Effective total State term imposed is 2 months Cumulative upon State sentences presently being served and imposed prior to this day. Pay compensation $400.00 as CARMICHAEL, GRAEME | |
| Dandenong Magistrates | 6/12/02 | Att. Theft of a motor vehicle Go equipped to steal/cheat Burglary Burglary Theft Theft of a motor vehicle Theft of a motor vehicle Burglary Burglary Use Heroin Drive whilst disqualified Reverse vehicle when unsafe | 2 3 3 2 2 | ON EACH CHARGE: 3 MONTHS imprisonment. Concurrent Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Pay compensation $17116.73 3 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Forfeiture order made without consent Order all Property/s seized be forfeited and destroyed. Pay compensation $17116.73 6 MONTHS imprisonment. Base sentence. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non- parole period fixed at 12 months. Pay compensation $17116.73 6 MONTHS imprisonment. Cumulative. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Pay compensation $17116.73 3 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. 3 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Licence cancelled and disqualified for 12 months. Order on licence effective from 06/12/2002 Pay compensation $17116.73 3 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Licence cancelled and disqualified for 12 months. Order on licence effective from 06/12/2002 6 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Pay compensation $17116.73 6 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. 7 DAYS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. Pay compensation $17116.73 1 MONTH imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 1 day, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 12 months. With conviction, fined an aggregate of $300.00 with $55.00 statutory costs. as CARMICHAEL, GRAEME |
| Stawell Magistrates | 11/06/02 | Theft of a motor vehicle Handle/receive/ dispose of stolen goods | Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months Pay compensation $200.00 Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months as CARMICHAEL, GRAEME | |
| Ararat Magistrates | 03/06/02 | Theft of a motor vehicle Theft Go equipped to steal/cheat | Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months DISQUALIFIED from driving for 6 months. Order on licence effective from 03/06/2002 Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months Pay compensation $100.00 Aggregate 4 MONTHS imprisonment. Concurrent. Effective total State term imposed is 4 months With conviction, fined $100.00 Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. | |
| Dandenong Magistrates | 15/05/02 | Burglary Theft Loiter with intent commit indict offence Possess property being proceeds of crime State false address when requested State false name when requested | 2 2 | Convicted and discharged. as CARMICHAEL, GRAEME |
| Melbourne County | 21/09/01 | Handle/receive/ retention stolen goods Obtain Property by deception Burglary Theft Handle/receive dispose of stolen goods Possess property being proceeds of crime Att. theft of a motor vehicle Go equipped to steal/cheat | 18 months youth training centre on each count concurrent. To supply forensic sample. | |
| Dandenong Magistrates | 20/03/01 | Burglary Theft | 2 months detention in a Youth Training Centre. Effective total term imposed is 2 months. 2 months detention in a Youth Training Centre. Effective total term imposed is 2 months. Pay compensation $1750.00 | |
| Dandenong Magistrates | 20/09/00 | Burglary Theft Theft Theft Possess property being proceeds of crime | 11 12 | 18 months detention in a Youth Training Centre. - Reasons: The above-named person has been found guilty by the Magistrates’ Court of a forensic sample offence. |
| Ringwood Magistrates | 16/05/00 | Theft Att. obtain property by deception | ON EACH CHARGE: 40 days detention in a Youth Training Centre Effective total term imposed is 40 days. | |
| Melbourne County | 21/03/00 | Burglary Traffic heroin Possess heroin | 4 12 | 6 months Youth Training Centre on each count concurrent and concurrent. Breach of community based order of 27.9.99. Order cancelled. 6 months Youth Training Centre on each count concurrent with sentence now serving. |
| Dandenong Magistrates | 08/03/00 | Aggravated burglary – person present Burglary Theft Recklessly cause injury Go equipped to steal/cheat | ON EACH CHARGE: 6 months detention in a Youth Training Centre. Effective total term imposed is 6 months. Time spent in custody 1 day reckoned as already served. 6 months detention in a Youth Training Centre. Effective total term imposed is 6 months. Time spent in custody 1 day reckoned as already served. Forfeiture order made without consent Order following Property/s seized be forfeited and destroyed: SCREWDRIVER | |
| Melbourne Country | 12/03/00 | Theft of a motor vehicle | 30 days. All licence cancelled and disqualified for 6 months. | |
| Dandenong Magistrates | 29/11/99 | Careless driving Breach of suspended sentence order | With conviction, fined an aggregate of $250.00 Convicted and discharged. Forfeiture order made without consent Order following Property/s seized by forfeited and destroyed: KNIFE Convicted and discharged. | |
| Dandenong Magistrates | 29/11/99 | re 16/06/99 Traffick heroin | Suspended sentence wholly restored. The restored term to be served is 2 months. | |
| Dandenong Magistrates | 27/09/99 | Theft-of bicycle | Convicted and a Community Based Order for 3 months. The Defendant is required to attend the Dandenong Community Corrections Centre by 30/09/1999 by 04.00 pm. The order commences on 27/09/1999 with the following conditions: To perform 30 HOURS of unpaid community work over 3 MONTHS. All core Community Based Order conditions to apply. as CARMICHAEL, GRAHAM JOHN | |
| Dandenong Magistrates | 18/06/99 | Traffick heroin Possess heroin Use heroin Possess money – being proceeds of crime | 2 MONTHS imprisonment. Concurrent. Sentence is wholly suspended under S. 27 of the Sentencing Act 1991. for 12 MONTHS. Forfeiture order made by consent Order all Drugs/Instruments seized be forfeited and destroyed. Convicted and a Community Based Order for 18 MONTHS. The Defendant is required to attend the Dandenong Community Corrections Centre by 22/06/1999 by 04.00 PM. The order commences on 18/06/1999 with the following conditions. To perform 100 HOURS of unpaid community work over 6 MONTHS. To submit for testing for alcohol/drug use as directed by the Regional Manager. To undergo assessment and treatment for alcohol/drug addition or submit to medical /psychological/ psychiatric assessment and treatment as directed by the Regional Manager. To be under the supervision of a Community Corrections Officer. All core Community Based Order conditions to apply. Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. Convicted and a Community Based Order for 19 MONTHS. The Defendant is required to attend the Dandenong Community Corrections Centre by 22/06/1999 by 04.00 PM. The order commences on 18/06/1999 with the following conditions. To perform 100 HOURS of unpaid community work over 6 MONTHS. To submit for testing for alcohol/drug use as directed by the Regional Manager. To undergo assessment and treatment for alcohol/drug addiction or submit to medical /psychological/ psychiatric assessment and treatment as directed by the Regional Manager. To be under the supervision of a Community Corrections Officer. All core Community Based Order conditions to apply. Convicted and a Community Based Order for 18 MONTHS. The Defendant is required to attend the DANDENONG COMMUNITY CORRECTIONS CENTRE by 22/06/1999 by 04.00 PM. The order commences on 18/06/1999 with the following conditions: To perform 100 HOURS of unpaid community work over 6 MONTHS. To submit for testing for alcohol/drug use as directed by the Regional Manager. To undergo assessment and treatment for alcohol/drug addiction or submit to medical/ psychological/ psychiatric assessment and treatment as directed by the Regional Manager. To be under the supervision of a Community Corrections Officer. All core Community Based Order conditions to apply. THE AMOUNT OF CASH FORFEITED IS $60.00 Forfeiture order made by consent Order all Property/s seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister | |
| Dandenong Magistrates | 11/06/98 | Theft-from shop (shopsteal) Possess cannabis | Without conviction fined $50. Without conviction adjourned for 12 months. | |
| Dandenong Childrens | 17/10/97 | Minor possess liquor Drink intoxicating liquor State false name-Transport Act Cross tracks between platforms Behave indecent/offensive – PTC VEH/PREM | All charges without conviction fined aggregate $50. | |
| Dandenong Childrens | 11/07/97 | Burglary Theft Minor consume liquor | All charges without conviction adjourned to 10.7.98 on $100 good behaviour bond. |
On the basis of Detective Senior Constable Mokos’s minute dated 4 December 2003, it is clear that Mr Carmichael pleaded guilty at his court appearance when he was arrested on 5 December 2002. The notes of Mr Carmichael’s interview with an officer of the Department on 30 January 2004 and signed by Mr Carmichael (“the interview”) are the basis of my finding that he had not made the compensation payments referred to above. In relation to the offences of which he was convicted on 5 December 2002, the compensation totalled $17,116.73. He has been ordered to pay other amounts of compensation. Most were small but on 20 September 2000 he was order to pay $20,119.00.
Courses undertaken during incarceration
Mr Carmichael has undertaken the following courses while he was at HM Prison Loddon (“Loddon”):
Alcoholics Anonymous completed 15 January 2003
Quit Information Session completed 14 January 2003
Narcotics Anonymous course completed 26 June 2003
D and A One on One Counselling completed 1 May 2003
Sporting Chance completed 27 May 2003
Comprehensive Drug Treatment completed 24 July 2003
Program
On the basis of the undated letter from the Department of Justice, I find that Mr Carmichael received outstanding reports from facilitators of the courses.
Mr Carmichael’s work during incarceration
Mr Carmichael worked in industries, kitchen and unit billet duties while at Loddon and received satisfactory work reports.
Warning
On 15 March 2002, Mr Carmichael signed an acknowledgement that he had been given notice of a decision not to consider visa cancellation under s. 501(2) of the Act (G documents, page 68). The notice itself had been dated 12 March 2002 but was not included in the G documents. At the time he was warned, Mr Carmichael was in a Youth Training facility.
THE EVIDENCE
Mr Carmichael’s early life
Mrs Carmichael said that her elder son had always been a bit shy but he was a happy go lucky child who played sport and did all the normal things. She and the family noticed that he drifted away from his old friends. Friends who had previously visited the house no longer did. He became moody and secretive and no longer told them what he was doing and who he was with. One day, he admitted that he had a heroin problem. That was late in 1999 and the family had no idea of it.
The offences
Both in his oral evidence and in the interview, Mr Carmichael said that all of his offences were drug related. He had mixed with the wrong people when he left school. He was vulnerable and easily led, he said. It was hard for him to say “no” to them and he made stupid mistakes. They were older than he was and he respected them. It was “cool” to do what they did. He no longer went with the friends he had at school. At the age of 16, he started to use heroin, he said in the interview. He had resisted doing so for some time but then began using it. By the time he was 17, he was using approximately 1gm each day and needed $300 a day to fund his habit. He used all of the money he obtained by committing offences to purchase drugs. Heroin affected his motivation level and it dropped so that he dropped out of his apprenticeship.
Mr Carmichael said that he did not associate with his old school friends because they lived further away. They were involved in a bit of binge drinking at times but never with drugs. His new friends gathered in a reserve near his home. He took drugs to be part of the gang and also because he had a bit of curiosity about drugs. Once he had taken up with the new friends, he could not go back to his old friends as he could not explain to them what had happened.
When he was released on parole on 4 February 2004, Mr Carmichael said, he was confident that he would not repeat his conduct. Although he had re-offended within five weeks of his arrest, he said at the hearing that he was confident that he would not re-offend were he to be released once more into the Australian community. Previously, he had not taken seriously the drug treatment programmes he had attended. He would not have contact with the gang, he said, but recognised that he had the same intention when he was released on 4 February 2004. After his release, he had bumped into members of the gang and he had started using again. That time, though, he had not made any effort to find a job. If he is working eight hours each day, he will keep away from his friends. One of them has written to him while he has been in gaol but Mr Carmichael did not reply. He thinks that the friend “got the message”.
The warning
Mr Carmichael said that he had no idea that he had been warned on 15 March 2002 about the possibility of his visa’s being cancelled. He acknowledged that he had signed a document to the effect that he had received the notice but must have signed that document without reading the letter. He did not understand it. Mr Carmichael also acknowledged that he had been interviewed by an officer of the Department on 30 January 2004. He had also been given a letter dated 23 January 2004 advising him that he would have the opportunity at the interview to comment on the information being considered by the Minister regarding the cancellation of his visa.
The future as seen in January 2004
The Prison Supervisor of Loddon assessing Mr Carmichael’s future in January 2004 considered that he “… would need to be supervised so that he did not follow his old ways”.
At the interview with the Department’s officer, Mr Carmichael is recorded as saying that he was remorseful, realised the seriousness of his crimes, understood that he had a drug problem that needed to be addressed. In addition to the courses he had completed in prison, he had plans to enrol with Narcotics Anonymous and to ask his counsellor if a methadone programme would be appropriate for him. During the previous 14 months, he had regained his health, matured and realised what an idiot he had been.
Mr Carmichael also said:
“… that his sentence was an eye opener for him. He had matured whilst being in prison and said that it was highly unlikely that he would re-offend in the future. Mr Carmichael stated that he had good support networks outside of prison including VACRO – in a support network – that would be finding employment for him for the first few weeks out of prison. He was planning to attend a gym. His mother, father and brother have all been very supportive and he had a network of ‘straight’ friends that he could turn to.” (G documents, page 57)
Were he to be removed from Australia, Mr Carmichael said at the interview, he would be quite lost as he knew no-one in Scotland. He continued:
“.. that it would ruin his father, mother and younger brother. They were quite shocked that his visa may be cancelled and extremely worried.
…
… close family friends would be concerned if he were to be removed from Australia. Also his girlfriend of the past 2½ years. Mr Carmichael and his girlfriend had corresponded regularly whilst he was in prison.” (G documents, page 58)
If he were permitted to remain in Australia, he intended to live with his mother and father at the family home. On his release from prison, he would have to report to the Dandenong Centre twice a week for the first three months and once a week during the remainder of his parole.
The future as seen in September 2004
In his oral evidence, Mr Carmichael said that he thought that he was over his drug use. Maturity has “kicked in” for him. He has to replace his drug use with a hobby, the gym, football and a stable job. Mr Carmichael thought that it was a good idea to have a job with his father as he would not let his father down. Mr Carmichael’s father said that he had not arranged an apprenticeship for his elder son but would get him work that was skilled such as driving cranes or pouring concrete. If his son were to use heroin again, he would not employ him. Although he has let him down in the past, Mr Carmichael said that he will not do so in the future. He will not be associating with his old friends as they had been his downfall in the past. He would not let his family down and wanted to continue rehabilitation once he was released from the prison.
In his oral evidence, Mr Carmichael said that he had not undertaken rehabilitation seriously before 10 March 2004 when he returned to prison. Of the courses he had undertaken before that time, he said that they were not “in depth”. They never answered the questions that he needed to have answered. He was never drug tested during those courses. Since his latest arrest, he said, he is maturing and seeing things differently. He is seeing where his life will end up. The course he has begun is called Erica. It is an intensive course at Fulham. Those on the course are shut away from the rest of the prison. They concentrate on why they use drugs. It is a voluntary programme and the participants have to make a contribution. Mr Carmichael said that he had heard about the course and had wanted to get on it even though Bendigo Prison was quite good. Participants are drug tested three times each week. All tests have been negative so far and that is an achievement for him, Mr Carmichael said. The course has been good for him because he understands why he is using drugs and the course has made him look at different avenues if he is allowed to. He is enjoying the course and has never undertaken anything like it before. Mr Carmichael is confident that he will not use drugs in the future. They have been his only downfall. If he can stay away from them, he will not offend again. He has made enquiries about courses outside the prison system that will assist with his rehabilitation.
Before he started using heroin, Mr Carmichael said, he and his brother had a good relationship but they then drifted apart. He is upset about that and disappointed in himself. Mr Carmichael looks up to his younger brother.
Mr Carmichael said that he realised that matters are now very serious. He had not taken the last warning seriously but does so now.
Mrs Carmichael said that the family’s relationship with her elder son has its ups and downs. His involvement with drugs was a total shock. Before it, the family had never had any involvement with the police. Mrs Carmichael said that she and her husband had threatened their elder son with such steps as putting him out of the house. They had not known what to do. She has visited him every three weeks and has seen him mature. His room was ready for him at home.
When her son had been released in February 2004, Mrs Carmichael said that it had not been good. She thought that he had been in touch with his friends in the gang. He showed no great change in his attitude at that time. She had seen a change of attitude since then. Mrs Carmichael thought that the job with his father was a good thing. Over the years, she had seen parole not working. Her son could not have a full time job as he had to keep his appointments.
Mrs Carmichael had been aware of the Department’s considering the cancellation of her elder son’s visa in January 2004 but had not been aware of the earlier consideration in 2002. If her son were not able to remain in Australia, it would be possible that the relationship between him and the rest of the family could not be maintained. Their life was in Australia and, apart from their mothers (grandmothers), the family had no ties to Scotland. She had last visited Scotland three years ago to see her mother and mother in law but there were no other family ties there. Mrs Carmichael just wants her family to get back to normal. She could not say that she had faith in her elder son last time he was released but she does this time. If the family cannot stand by him, who can, she asked.
Mr Carmichael senior thinks that his elder son has had a real shake up this time. If his son were to return to Scotland, Mr Carmichael thought that he would not be able to visit him. He last travelled there three years ago but he suffers from high blood pressure and needed special insurance and medication. No one in the United Kingdom knows of his son’s problems, he said, and nor do they in Australia. His son could not stay with his mother or his wife’s mother as each lived in a one bedroom apartment. Mr Carmichael senior said that he is not saying that his elder son does not deserve to be sent back to Scotland but he was asking that he not be sent back. Doing so would split the family forever.
Mr Douglas Carmichael said that he was disappointed that he could not look up to his elder brother. When they had been younger, they had been really close but had not been since 1999. He wanted an older brother with whom he could go camping and generally spend time with. If his elder brother were sent to Scotland, Mr Douglas Carmichael said that he would not be able to see him there. He is apprenticed to an electrician and is working. The effect on him if he were not able to see his brother would be shattering and a bit hard, he said.
CONSIDERATION
Framework of Act: Character test
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Migration Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a BF155 Visa permitting indefinite stay in Australia is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 in Schedule 4 of the Migration Regulations provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
(b)…
(c) …
(d) …
Otherwise, the person passes the character test.”
For the purposes of the Character test, a person has a substantial criminal record if, among others:
“the person has been sentenced to a term of imprisonment of 12 months or more” (s. 500(7)(c))
Framework of Act: procedure when applicant within migration zone
Section 501G sets out the procedures that the Minister must follow if he makes a decision under s. 501(2) of the Act. He has complied with those requirements in cancelling Mr Carmichael’s visa.
Section 25 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) provides that an enactment may provide that an application may be made to the Tribunal for review of, among others, a decision made in the exercise of powers conferred under that enactment (AAT Act, s. 25(1)(b)). The Tribunal has power to review any decision in respect of which an enactment may be made to it under any enactment (AAT Act, s. 25(4)). The AAT Act goes on to give the Tribunal powers that enable it to review a decision in respect of which an application is made to it. Generally speaking, its procedure is a matter for it, its proceedings are to be conducted with as little formality and without technicality as permitted by a proper consideration of the matters and it is not bound by the rules of evidence and may inform itself in any manner it thinks appropriate (AAT Act, s. 33).
The general position is subject to other provisions of the AAT Act and of other enactments. This is clear from ss. 33(1)(a) and (b) as well as from the more general provisions of s. 25(3)(c). It is to the effect that the enactment providing for review of a decision may specify conditions subject to which applications may be made. It may also include provisions adding to, excluding or modifying the operation of, among others, s. 33 (AAT Act, s. 25(6)(b)).
In relation to persons such as Mr Carmichael who are in the migration zone at the time the decision is made under s. 501, Parliament has decided to modify some of the provisions of the AAT Act. It has, for example, provided that a person within the migration zone must lodge his or her application within nine days after the day on which he or she was notified of the decision in accordance with s. 501G(1) (s. 500 (6B)) rather than within 28 days generally provided by s. 29 of the AAT Act. Section 37 of the AAT Act provides that the decision-maker must lodge a statement of reasons and documents that are in the decision-maker’s possession or control and that are relevant to the review. Section 500(6D) of the Act provides that s. 37 does not apply in relation to the decision made under s. 501 when the decision relates to a person in the migration zone. Instead, an applicant is required to lodge in the Tribunal one of the sets of documents given to him or her under s. 501G(2) of the Act (s. 500(6C)(b)). That includes, among other matters, the reasons for decision. The Minister is then required to lodge further documents with the Tribunal within 14 days after the day on which he was notified that the application had been made. Those documents are those in the Minister’s possession or control and that are both relevant to the making of the decision and contain non-disclosable material (s. 500(6F)(c)).
The Tribunal may not hold a hearing until at least 14 days after the date on which the Minister was notified of the application’s having been made (s. 500(6G)). This ensures that the Minister has had time to lodge the documents under s. 500(6F)(c). Section 500(6H) makes provision for information that is to be given to the Tribunal in spoken form. It provides:
“If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in the written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.” (s. 500(6H))
If the applicant wishes the Tribunal to have regard to any other documents, he or she must give the Minister a copy at least two business days before the Tribunal holds a hearing (s. 500(6J)). A “business day” is a day that is not a Saturday, Sunday or a public holiday (s. 500(8)). If the Tribunal considers that particular documents, or documents in a particular class, may be relevant to the decision under review, it may require the Minister to lodge two copies of each of those documents that is in his possession or control. The notice requiring the Minister to do that must state that the Tribunal is of the opinion that the documents may be relevant to the decision under review (s. 500(6K)).
If the Tribunal has not made a decision under ss. 42A, 42B, 42C or 43 of the AAT Act within 84 days of the day on which the applicant was notified of the decision in accordance with s. 501G(1) of the Act, it is taken to have affirmed the decision (s. 500(6L)).
CONSIDERATION
Can regard be had to all or some of the oral evidence given in support of Mr Carmichael’s case?
On 5 August 2004, I reminded Mr Carmichael’s solicitor, Mr Haskett, of the specific time limits regarding the filing of material set out in s. 500 of the Act. If that material was not lodged within those time limits, I would not be able to have regard to it. I also reminded him that, as the hearing had been listed for Monday, 20 September 2004, he would have to comply with the provisions of s. 500 by close of business on Wednesday, 15 September 2004 i.e. two clear business days before the hearing. This information was consistent with that set out in an attachment to the letter sent to Mr Carmichael on 15 July 2004 advising him of the Minister’s decision (G documents, pages 7-8). I made a written direction that directed, in part:
“on or before 15 September, 2004 the applicant file in the Tribunal and serve on the respondent witness statements and all reports, records and any other documents upon which he relies …”
Mr Haskett signed and filed two documents on 15 September 2004. The first stated that:
“The Applicant intends to provide any reports and/or certificates he has received whilst undertaking courses at the various prisons. Due to the distance between the applicant and his practitioner these documents cannot be identified but will be made available at the hearing.”
Mr Strauch did not mention any of those documents at the hearing but Mr Chand had drawn his attention to the provisions of s. 500(6J) of the Act before the commencement of the hearing.
The second document is entitled “Statement of witnesses” and reads:
“1. Maureen Carmichael – d.o.b. 14/3/57
This witness to give evidence as to the arrival of the applicant in Australia, the nature of his upbringing, his personality and other matters he has disclosed during his upbringing and her observations as to any change in the applicant especially his behaviour in the last 12 months.
2.John Carmichael – d.o.b. 25/4/55
This witness to give evidence as to the arrival of the applicant in Australia, the nature of his upbringing, his personality and other matters he has disclosed during his upbringing and her observations as to any change in the applicant especially his behaviour in the last 12 months.
3.Douglas William Carmichael – d.o.b. 7/6/83
This witness is the younger sibling of the applicant and his evidence is to be in relation to the various heads of matters the Minister is to take into account being the degree of hardship and disruption to the family of the applicant and how he would suffer if the applicant was [sic] removed from Australia and the likely effect it would have on his brother.”
Whether these can properly be regarded as witness statements is questionable. None contains the address of the witnesses. While each identifies the topics on which the witness will give evidence, none contains an outline of the evidence to be given on each of those topics.
The requirements of a witness statement are not strictly relevant for s. 500(6H) does not refer to witness statements but to “information”. Its ordinary meanings, in so far as they are relevant are:
“… Communication of the knowledge of some fact or occurrence …” (Shorter Oxford English Dictionary, 5th edition, 2002)
“… knowledge communicated or received concerning some fact or circumstance …” (Macquarie Dictionary, 3rd edition, 1997)
The word was also considered by Burchett J in One.Tel Limited and Others v Deputy Commissioner of Taxation (2000) 171 ALR 227 in the context of s. 108(1) of the Sales Tax Assessment Act 1992. That section allows the Commissioner of Taxation to require a person to provide “information”. His Honour referred to Re Stuart and Oliphant and Seadon’s Contract [1896] 2 Ch 328 at 334, Insurance and Superannuation Commissioner v Robertson (1995) 30 ATR 239 at 240 and Fieldhouse v DCT (1989) 25 FCR 187 at 207 and to the ordinary dictionary meanings of the word. After bearing in mind that “… the language of a judicial exposition of the terms of a statute should never be substituted for the very words of the statute itself…” (at 236), Burchett J concluded that:
“So s 108 is concerned with the communication to the Commissioner of the knowledge about facts or a particular subject matter which a person is able to provide and the Commissioner requires for the purpose of enabling him to apply the sales tax law in relation to the person or some other person.” (at 236-7)
The statutory scheme, of which s. 500(6H) is a part, appears seems to me to lead to a similar conclusion. That scheme was summarised by Gray J in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 (Gray, RD Nicholson and Stone JJ) (2001) 33 AAR 446:
“25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to the case. …” (at 457-8)
If the Minister is to have the advantage intended by Parliament, the “information” to which reference is made in s. 500(6H) must be a reference to a person’s knowledge about facts or about a particular subject matter that is presented in support of an applicant’s case. It is not a reference to the topics on which a person has knowledge about those facts or that subject matter. It cannot be for only by being forewarned of the person’s knowledge in a written statement given to the Minister at least two clear business days before the hearing, is the Minister given the opportunity to be better able to respond to an applicant’s case. Forewarning of the topics alone without the detail does not give the Minister that opportunity.
Whether or not information has been set out in any written statement given to the Tribunal is a matter of fact and degree. It seems to me that the information that a witness is to present orally to the Tribunal must, on the face of s. 500(6H), either be expressly stated in a written statement or must necessarily be implicit in it. If for example, an applicant’s spouse were to say in a written statement that she had noticed his behaviour had improved in the previous year in relation to his dealings with his family and outsiders, it is arguable that she could expand on that in giving oral evidence by giving examples of his improved behaviour. Mr Haskett’s statement that Mr and Mrs Carmichael will give their “… observations as to any change in the applicant especially his behaviour in the last 12 months” is more questionable. The words “any change” do not automatically lead to the conclusion that there has been an improvement in their son’s behaviour in that time or, indeed, whether there has been any change at all. I do not consider that the statement meets the requirements of s. 500(6H). The remainder of the statements cause me similar problems. They are addressed to broad topics only and do not possess the degree of particularity to amount to “information” in the sense required by that section.
I say “on the face of ” s. 500(6H) because there remains the question whether strict compliance with its provisions is required. The distinction between those legislative provisions requiring strict compliance and those that do not was considered by the High Court in Project Blue Sky and Others v Australian Broadcasting Commission (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting). That distinction had previously been described in terms of mandatory and directory provisions in relation to the exercise of a power. At one time, failure to follow a mandatory provision might have led to an exercise of a power being found to be invalid but failure to follow a directory power would not have. Much would have turned then upon the proper characterisation of a provision.
The distinction between mandatory and directory provisions is no longer a valid distinction to draw. That follows from the majority judgement of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission. As Brennan CJ explained in his dissenting judgment:
“…The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory.” (page 374)
His Honour’s approach is consistent with that adopted by the majority, who added:
“... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ ….” (pages 390-391)
These principles were considered by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387 in the context of s. 500(6C) the Act. That section provides that, if a decision under s. 501 relates to a person in the migration zone, an application for review of a decision must be accompanied by, or by a copy of, the document notifying the person of the decision and one of the sets of documents given to him or her under s. 501G(2). Finkelstein J concluded that a failure to comply with s. 500(6C) would not result in invalidity of the application. He added that “no purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event” (at 391). His Honour observed that failure to comply with s. 500(6C) would still mean that the application would be dealt with expeditiously as intended by Parliament. The Tribunal could require the Minister to produce the documents once the application has been lodged. Cancellation of a visa would result in the deportation of the non-citizen and so cause great hardship to him or her and to his or her family. It was difficult to imagine, he said, that Parliament intended that a non-citizen should lose his or her right to review merely because documents that remained in the possession of the Minister had not been lodged.
At first glance, there is a conflict between the conclusion reached by Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs and that reached by Gray J in Goldie v Minister for Immigration and Multicultural Affairs. The apparent conflict arises from the fact that both considered provisions of s. 500 relating to applications where the applicant is in the migration zone and yet reached different conclusions regarding whether strict compliance was required. It is important to note, though, that neither of their Honours applied their conclusion to the whole of the section. Finkelstein J was concerned with that relating to the application and Gray J with that relating to the Minister’s being forewarned of the documentary evidence to be given at the hearing. They reached different conclusions but from a common basis of reasoning. That was that Parliament intended that the Minister be forewarned of the evidence that was to be given on behalf of an applicant for review. Strict compliance with s. 500(6C) requiring that the applicant lodge with an application documents that he has already been given by the Minister’s delegate does not advance the Minister’s knowledge of the applicant’s case. Strict compliance with s. 500(6J) relating to documentary evidence does. It follows that the cases are consistent. As the provisions of s. 500(6H), with which I am concerned and which relates to oral information, reflects those of s. 500(6J) relating to documentary evidence, it also follows that I consider that I am bound to find that it requires strict compliance. Even if I were not bound, I would have reached the same conclusion in view of the purpose behind the provisions and to which I have referred above.
I will now consider the information to which I may have regard in light of s. 500(6H). If the statement of witnesses filed on 15 September 2004 were the only written material I had, I would have to find that I could not have regard to any of the evidence of Mr and Mrs Carmichael and their younger son, Douglas. There is, however, other written material in the G documents. That includes a letter written by Mr Carmichael and another by his mother. There is also a copy of his interview by an officer of the Department on 30 January 2004. Each can be regarded as a “written statement” and there is no requirement that the “written statement” be in any particular form or have been prepared at any particular time. The focus of s. 500(6H) it seems to me, is on the provision of the information and, apart from its being in writing, not upon its form or the time of its being communicated provided it is provided no later than two business days before the hearing.
Having heard the evidence and read the G documents, I have concluded that I am able to have regard to all of the evidence given at the hearing other than:
Mr Carmichael’s progress on the drug course at Fulham.
Through the listing notice and correspondence sent by the Tribunal to his solicitor, the Minister had notice that Mr Carmichael had been transferred from Bendigo Prison to Fulham. There is no requirement in s. 500(6H) that the written statement must have been given on behalf of the applicant. The emphasis is upon the Minister’s being given that statement rather than upon the source of that statement. I consider that it is implicit in Mr Carmichael’s being transferred to Fulham from Bendigo that he is undertaking a drug course. What is not implicit is his progress on that course.
Mr Carmichael’s having been drug free each time he has been drug tested at Fulham.
In his interview with an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) on 30 January 2004, Mr Carmichael referred to his having attended various drug courses including a Comprehensive Drug Treatment Program. A note from an officer of the Department on 28 June 2004 recorded her conversation with an officer at Bendigo Prison. That was to the effect that Mr Carmichael was attending an intensive drug therapy course and that he was a regular attendee. It can reasonably be inferred from that information that he would have been tested for drugs but the results of those tests cannot be inferred from the written information.
An earlier note from the Department of Justice to the Department and faxed to it on 27 January 2004 noted that Mr Carmichael had not tested positive to any drug tests since 31 December 2002. His general behaviour had been of a high standard. Again, it cannot be inferred that he had the same results at Fulham.
Mr Carmichael’s father having organised employment for him.
At the interview, Mr Carmichael had spoken of his organising employment through VACRO on his release in February 2004 but this does not extend to the employment arranged by his father more recently should he be released into the Australian community.
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Carmichael has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.
The Direction – exercise of the discretion
That brings me to the exercise of the discretion under s. 501(2). The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, paragraph 2.2)
The three primary considerations are:
“(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Carmichael’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mr Carmichael’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;
…
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
…
(n)any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community;
…” (Direction, paragraph 2.6)
The Minister has also stated that:
“It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of the offences, the time between the offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.” (Direction, paragraph 2.7)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Carmichael as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Carmichael’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (Direction, paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. There are no children in this case to whom I need to have regard.
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to … an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the … visa … cancellation provisions at section 501.” (Direction, paragraph, 2.17)
Should Mr Carmichael’s visa be cancelled on the basis of his not passing the character test?
I find that Mr Carmichael has a history of offending extending over almost seven years. I accept his evidence that his offences have been committed to enable him to maintain his heroin habit. That heroin habit began when he was 16. It was a habit that, by the time he was 17, required approximately $300 a day to maintain. I make these findings based on his statement at the interview and on the basis of when he started being convicted. At the hearing, he said that he had started using heroin in 1999. That was the year of his first heroin convictions. They were for possessing, using and trafficking heroin. I think it more likely that he began some time before his first conviction relating to heroin and that accords with his statement at the interview and with the history of his convictions.
His offences began in 1997 with burglary, theft and being a minor consuming liquor. They were regarded with some seriousness for, although no convictions were recorded, he was placed on a good behaviour bond for a twelve month period. Three months later, he was convicted of five offences including alcohol related offences. This time, the offences were treated as relatively minor in that he was fined an aggregate of $50 and again no conviction was recorded. Offences of theft and possessing cannabis committed some eight months later were treated in the same way but were also adjourned for twelve months. Other offences committed at that time were not treated as lightly. Convictions were recorded for offences of which Mr Carmichael was convicted on 18 June 1999. It was at that time that he began to be sentenced to terms of imprisonment for some of his offences. Even then, he was shown leniency for they were suspended and he was required to undergo assessment and treatment for alcohol/drug addiction. It is clear from his offences at that time that he was not only using heroin but also trafficking it. The amount he possessed for that purpose is likely to have been small for a sentence of only two months’ imprisonment was suspended for a year. He was re-sentenced on that offence, together with others, when he was convicted of further offences in March 2000. That was the first time that Mr Carmichael was given a sentence of detention and it related also to the breaches of the earlier bonds he had been given. That detention was in a Youth Training Centre but even when he was released, he continued to offend.
Mr Carmichael’s convictions and the sentences that were imposed show a continual disregard for the law by Mr Carmichael. The nature of the offences remains similar in that they are offences against property, drug related offences and the possession of money and/or property being the proceeds of crime. Apart from his most recent convictions and those in December 2002, the terms of imprisonment and other penalties have been relatively small. That in December 2002 was eighteen months imprisonment and his most recent was for an aggregate of two years.
I accept that Mr Carmichael had a drug addiction. Like an alcoholic, he continues to have that addiction even though he has been drug free since March this year. His conduct is serious for it shows a continued lack of concern for his own situation let alone for those whose property he took or burgled and for those to whom he trafficked heroin. It is serious for its very regularity over a seven year period from 1997 to 2004. His drug offences have included trafficking of heroin and, from the point of view of the Minister’s Direction, are also regarded as serious even though I accept that he committed his offences because of his drug addiction.
The likelihood of Mr Carmichael’s re-offending is quite high. He was required to comply with directions as to drug and alcohol counselling as long ago as 18 June 1999 but there is no evidence of the directions that he has been given, if any. Mr Carmichael did undertake courses in Bendigo and has now volunteered for another at Fulham. At the hearing, he claimed that he had not taken the courses at Bendigo seriously. The course at Fulham is different because it answers the questions that he wants answered. His attitude to the courses at Bendigo may run a little counter to what he said of them at the interview in that there is no suggestion at that time that they were not helping him. By the same token, it may be said that he gave an accurate assessment of those courses on the basis of his knowledge at the time and that was prior to his transfer to Fulham and so prior to his entry to Erica.
What is more worrying is what Mr Carmichael said at the interview regarding his plans for the future. Apart from the person who will organise his employment, his hopes for the future expressed at the interview and those expressed at the hearing are very similar. He retains the same good family support as he had earlier in the year. His plans for keeping himself busy are the same. Mr Carmichael, I accept, has good intentions. I accept that he does not want to let himself down or his family down but the assessment from Loddon Prison while he was an inmate in 2003 is telling. It was that he would need to be supervised if he is not to follow his old ways. His behaviour on his release in February 2004 is telling in that regard. Despite having been put on notice by the interview that he could have to leave Australia, he committed further offences within five weeks of his release. Despite having the support of a loving family, he committed those offences. Despite having firm plans as to how he would find employment he committed further offences. I accept Mrs Carmichael’s assessment that her son has gained in maturity but whether he has gained in maturity to avoid temptations to which he has succumbed in the past is questionable. Being able to ignore a letter written by a former associate when he is in Fulham is a different matter from being able to ignore that associate in the park or in the street. I reach the same conclusion with regard to Mr Carmichael’s having had negative drug tests since he has been imprisoned on the most recent occasion. Even though drugs should not be available in the prison environment, I accept that Mr Carmichael’s being drug free when he is a heroin addict is an achievement. He is to be praised for it. It is an important achievement but it is a first step towards achieving his being drug free in a less controlled environment. That less controlled environment will occur on his release when his old friends may be harder to ignore as they may be more “in his face”. I note that he had also made that important first step prior to his release in February 2004. It is not a new thing for him to do so. Yet he failed himself within five weeks or so of his release when he began to associate with his old friends. At this stage of his treatment, I find that there is a real risk that Mr Carmichael will repeat his conduct once he is released even though it is to be hoped that he will not. I do not have any assessment of his progress from Fulham Prison. It may be that, at a later time after he has completed his course, that risk will be greatly reduced. Unfortunately, in view of the statutory time limits set out in the Act, I cannot defer the case until his progress can be ascertained by the course facilitators.
I find that the Carmichael family has not revealed their elder son’s activities in recent years. That is understandable but I do not think that is not determinative of whether or not any cancellation of Mr Carmichael’s visa would prevent or discourage similar conduct. Mr Carmichael is also part of the prison community and such information is likely to become known in that community. How many of those people who will hear of the cancellation and who will not be Australian citizens is a matter that I cannot determine on the evidence I have. I am satisfied, however, that there is a possibility that it will discourage similar conduct by a person who is in the prison community.
The Australian community is understanding of people’s weaknesses. The criminal system was sympathetic to Mr Carmichael’s situation when he was a young offender in that he was directed to undergo assessment as well as treatment for drug and alcohol addiction in the very early days of his offending. Mr Carmichael was for one reason or another unable to take advantage of the assistance he was offered at that time. He was warned on 15 March 2002. At that time, he was just a few days short of his 21st birthday. Mr Carmichael says now that he did not read the warning properly but, given the way in which he re-offended after the interview in 2004, I find that he was careless of the warning and ignored it rather than not reading it at all. If Mr Carmichael does re-offend, it is likely that he will commit the same types of offences as he has in the past. With the exception of one offence of recklessly causing injury on 8 March 2000, there is no history of violence against the person. There is however, a history of invasion of persons’ space and/or taking their property let alone offences of trafficking. Given the two warnings he has been given, one actual and one implicit in the interview, and his subsequent conduct after each, I consider that the Australian community would consider that Mr Carmichael should be removed from Australia.
Mr Carmichael’s family is to be admired. They are very supportive of their elder son and brother; they will help him in anyway they can be it through employment, providing a home or spending time with him. Mr Carmichael clearly appreciates his family and their love and support for him. He is disappointed in himself that he has let them down. If he is sent to Scotland, he will not have that support in tangible ways because I find that his parents will not return with him. He does not have any real support network in Scotland as his grandmothers are too elderly to be asked, or expected, to undertake such a role. The only support that Mr Carmichael will have will be emotional and it will be in the form of telephone calls and letters from his family in Australia. That will cause hardship to Mr Carmichael and to his family.
Although Mr Carmichael’s family will be a tower of strength for him, Mr Carmichael’s behaviour in the future ultimately rests with him. It is for him to have the strength of character to ignore the influences of his old friends. He has been given some assistance to go on new avenues through the courses he has done and through that which he is doing at Fulham. Whether he takes the opportunity to make use of that assistance is in his hands. It is in his hands whether he is in Australia or in Scotland. In the past, his resolve has not proved to be very great. The time limits imposed by the Migration Act mean that I cannot defer the matter to determine whether he will forget his old ways. On the evidence that I have at this stage, I have decided that the risks of his re-offending remain significant. As the consequences of his doing so are serious, they outweigh the hardship and difficulties that he will face on his own in what is for him an unknown land even though it is the former home of his parents.
For the reasons I have been given, I affirm the decision of the respondent dated 13 July 2004.
I certify that the eighty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
R. Crook Associate
Date of Hearing 20 September 2004
Date of Decision 30 September 2004
Counsel for the Applicant Mr A. Strauch
Solicitor for the Applicant Victorian Legal Aid Bendigo
Solicitor for the Respondent Mr A. Chand
Clayton Utz
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